Thursday, March 19, 2015

Friday, January 2, 2015
Repeal laws that violate our constitutional, human rights By James P. Gray
Millions of people all around the world still love America - and Americans.
They may not always be wild about some of the actions our government takes,
but many of us here are not either. But what is it that makes our country so
special - even exceptional? The soul of our great country is our liberty and
our freedoms. And today our very soul is under attack by our own government.
As legal professionals, we cannot allow this to continue.
The temptation to deprive people of their liberties in the name of their own
security goes back throughout history to Ancient Greece and before. The
Founding Fathers of our country (and Mothers, because women like Abigail
Adams must be included) were keenly aware of this tradeoff. This caused them
to try to combat it by drafting our Constitution and Bill of Rights, so our
country would be a bastion of individual freedom from government
encroachment. Tragically those protections have been eroded substantially
since that time - mostly by keeping our country in a constant state of war.
James Madison's warned us that "No nation can preserve its freedom in the
midst of continual warfare ... If tyranny and oppression come to this land,
it will be in the guise of fighting a foreign power." We should keep his
warnings forefront in our minds, because that is what we are now facing.
The justifications for the main present attacks upon our liberty by our
government come from several statutes passed by Congress in the name of
keeping us safe, with the largest impetus being from the so-called War on
Terror. In its name Congress passed the National Defense Authorization Act,
which allows our government to detain (i.e., arrest) any of us, citizens or
not, and hold us indefinitely without charges or a trial, merely by the
executive department labeling us as suspected terrorists. This statute has
turned our traditional concept of due process on its head.
The same rationale was also used for Congress to pass the so-called PATRIOT
Act, which has been used to justify government snooping upon our private
telephone calls, email messages, and bank records. That same legislation was
also used to justify the torture (often labeled as "enhanced interrogation")
of people in our custody. And yes, that includes waterboarding. Did you ever
think that our country would even debate whether we should waterboard
someone in our custody? Acts like these were seen by George Washington as
such a blight upon the honor of our country that he threatened death during
the Revolutionary War to any of our troops who mistreated British prisoners
of war.
When it comes down to it, there probably is no power more complete than the
ability to torture captive human beings, or more despicable. So these laws
must be repealed. Why? Because we are better than this. Sen. John McCain,
who was tortured continually while being held captive in North Vietnam, put
it best when he said torture "compromises that which most distinguishes us
from our enemies." And our country officially recognized this reality in the
1980s when we joined most of the civilized world in signing a treaty
committing us to refrain from torture under any circumstances, and to
prosecute any of us that did so.
An additional reason to repeal these laws is practical. The goal of most
terrorist organizations is to show the world that, contrary to its
preaching, the government of the United States of America is no better than
any other. So every time our government acts to violate anyone's human or
constitutional rights, it is helping the terrorists to achieve their goal.
The same analysis and reality should keep our government from killing people
with missiles launched from drones. This is not only a violation of our
principles, but, at least in countries like Pakistan and the Sudan where we
don't even claim we are at war, is probably also a violation of
international law. And besides, just like with torture, it probably doesn't
work. Put yourself in the place of a son or brother of someone killed by one
of our drones, you would probably vow revenge. We are almost surely
recruiting more terrorists than we are killing.
Without a doubt radical groups in the world today are doing monstrous things
to innocent people, like shooting students in their schools, bombing devout
people while in prayer, and kidnapping and executing women and children. But
the scenario that there is a "ticking time bomb" about to explode, and the
only way to keep innocent people from being killed is to torture the
information out of a terrorist, basically only happens in Hollywood.
Furthermore, as if we needed any other reason but the moral one, tortured
information is typically unreliable.
There is also another important reason for repeal: Requiring government
agents to procure a judicial warrant based upon probable cause will not
compromise our security. Federal judges are fully as concerned about
terrorist threats as the rest of us are, and they will surely sign arrest
and search warrants as the circumstances and the law allow to enable
government agents to keep us safe. But enforcing the constitutional
requirement of procuring those warrants will seriously reduce the risks of
abuses in the process itself.
Finally, when it comes down to it, we, as adults, must be realistic enough
to realize there is only so much that our government can do to keep us safe
from wanton acts of terrorism. Yes, we can concentrate our security forces
on airline terminals, but what about train stations or bus terminals? Or
bridges or tunnels on our nation's highways? Movie theaters, sports stadiums
or crowded beaches? We should take a lesson from the people of London during
World War II's Battle of Britain when hell was literally reigning down from
the skies during the frequent German Luftwaffe bomber attacks. When the air
raid sirens went off, people did what was necessary to protect themselves by
going down into bomb shelters. But after the all-clear was sounded, they
went back to their regular lives without living in fear. We should do the
same.
So let us all stand up and work actively to repeal all of our country's laws
that allow human and constitutional rights to be violated. It is the right
thing to do for simple justice. More importantly, our country's soul is at
stake.
James P. Gray is a retired judge of the Orange County Superior Court, the
author of "A Voter's Handbook: Effective Solutions to America's Problems"
(The Forum Press, 2010), and was the 2012 Libertarian candidate for vice
president, along with Gov. Gary Johnson as the candidate for president.
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About Judge Jim Gray

Cited on numerous occasions for his work in the areas of both social reform and civic philanthropy, Judge James P. Gray currently presides over the civil trial calendar for the Superior Court of Orange County.
Judge Gray was appointed to the Santa Ana Municipal Court in 1983 by Governor George Deukmejian, and in 1989, Deukmejian elevated Gray to his post with the Superior Court.
Throughout his 29-year career within the legal and judicial community, Jim Gray has not only donated hundreds of hours of volunteer time to existing community service-oriented activities, he also has created and implemented a number of innovative programs of his own, each one a success story in itself.